JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: TIPPERARY DEVELOPMENTS PTY LTD & ANOR -v- THE STATE OF WESTERN AUSTRALIA & ORS [1999] WASC 62
CORAM: PARKER J
HEARD: 19 MAY 1999
DELIVERED : 16 JUNE 1999
FILE NO/S: CIV 2490 of 1992
CIV 1473 of 1994
CIV 1878 of 1994
(Consolidated by Orders dated 8 June 1994 and 21 September 1994)
MATTER :Application for Non-Party Discovery
BETWEEN: TIPPERARY DEVELOPMENTS PTY LTD
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant(BY ORIGINAL ACTION)
THE STATE OF WESTERN AUSTRALIA
PlaintiffAND
TIPPERARY DEVELOPMENTS PTY LTD
First DefendantWARREN PERRY ANDERSON
Second Defendant(BY COUNTERCLAIM)
Catchwords:
Procedure - Non-party discovery - Unnecessary and oppressive
Procedure - Legal professional privilege - Refusal to order liquidators to waive privilege
Re Condon; Ex parte James (1874) 9 Ch App 609 considered
Legislation:
Rules of the Supreme Court (WA) O 26A r 5
Result:
Application for non-party discovery granted in part
Representation:
Original Action
Counsel:
Plaintiff: Mr I A Morison
Defendant: Ms D H Carey
Liquidators of Rothwells : Mr G H Murphy
Solicitors:
Plaintiff: Slater & Gordon
Defendant: State Crown Solicitor
Liquidators of Rothwells : Minter Ellison
Counterclaim
Counsel:
Plaintiff (by Counterclaim) : Ms D H Carey
First Defendant (by Counterclaim) : Mr I A Morison
Second Defendant (by Counterclaim) : No appearance
Liquidators of Rothwells : Mr G H Murphy
Solicitors:
Plaintiff (by Counterclaim) : State Crown Solicitor
First Defendant (by Counterclaim) : Slater & Gordon
Second Defendant (by Counterclaim) : No appearance
Liquidators of Rothwells : Minter Ellison
Case(s) referred to in judgment(s):
Carter v The Managing Partner, Northmore Hale Davey and Leake (1995) 183 CLR 121
Davis v Sagar Pty Ltd, unreported; SCt of WA (Sanderson M); Library No 980443; 10 August 1998
Harman v Home Department State Secretary [1983] 1 AC 280
Hartogen Energy Limited v A G L Co (1992) 36 FCR 557
Kent Cole Concession Ltd v Duguid [1910] 1 KB 904
Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58
Mobil Oil Australia Ltd v Guina Developments Pty Ltd (1996) 33 IPR 82
Molnycke A B v Proctor and Gamble Ltd (No 3) [1990] RPC 498
O'Sullivan v Herdsmans Limited [1987] 3 All ER 129
Re Ayoub; Ex parte Sylvia (1983) 67 FLR 144
Re Clark (A bankrupt; Ex parte trustee) v Texaco Ltd [1975] 1 WLR 559
Re Condon; Ex parte James (1874) 9 Ch App
Science Research Council v Nasse [1980] AC 1028
Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1
Case(s) also cited:
Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247
Attorney-General (NT) v Maurice (1986) 161 CLR 475
Australian Manufacturing Workers Union v Seeley international Pty Ltd [1988] IR 253
Baker v Campbell (1983) 153 CLR 52
Goldberg v Ng (1995) 69 ALJR 919
Grant v Downs (1976) 135 CLR 674
Lurgi (Australia) Pty Limited v Gratz, unreported; SCt of Vic (Hanson J); BC 950 6631; 14 November…
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- AGLC
- Tipperary Developments Pty Ltd v Western Australia [1999] WASC 62
- Case
- [1999] WASC 62
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the plaintiff could compel the liquidators to waive legal professional privilege over certain documents that were not directly related to the plaintiff's case but were relevant to the broader litigation involving Rothwells and the State of Western Australia. The plaintiff argued that the refusal to waive privilege was unnecessary and oppressive, and that the documents were crucial to their case. The liquidators, on the other hand, contended that they were entitled to maintain the privilege, as the documents related to their duties as liquidators and might affect the interests of various parties, including creditors of Rothwells.
The court considered the principles of legal professional privilege and the circumstances under which it could be waived. It held that the application could not be supported by the rule in Ex parte James or any statutory power. The court emphasised that privilege remains until waived by a competent person, and there was no basis to conclude that the liquidators' claim of privilege was unconscionable or unfair. The court noted that the liquidation was not formally concluded, and there were still interests at stake that could be affected by the waiver of privilege. The court also highlighted that the documents would become available to all parties and their advisers once discovered, regardless of any restrictions the plaintiff sought to impose.
The court dismissed the plaintiff's application for non-party discovery and to compel the liquidators to waive legal professional privilege. The liquidators were entitled to maintain the privilege over the documents in question.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In that case Gummow J was considering submissions which sought to rely in the alternative on the rule and on s377(5) of the Companies (NSW) Code. In my respectful view the reasons offer no support for the view that the rule will support such an order. At the most the prospect is left open that in a given case the exercise of an appropriate statutory power may lead to such an order; cf Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 at 5 per Malcolm CJ, Seaman and White JJ concurring. In this present application no case has been made out for the exercise of any statutory power and in my view the application cannot be brought within any accepted understanding of the rule in Ex parte James. I would further observe that it is not been shown that there is any unfairness or unconscionability on the part of the liquidators in seeking to invoke legal professional privilege in the present circumstances. The plaintiff's submissions sought to identify a number of matters which made the maintenance of legal professional privilege unconscionable. At the forefront was the factual assertion, which has been rejected, that the liquidators were prepared to release the documents for money, and a corollary that privilege was only raised when money was refused which is similarly not made out as a matter of fact. The submissions also sought to rely on evidence that the administration is effectively at an end and that the plaintiff was not a party to the GESB or any other litigation in respect of which the liquidators claimed privilege, and that neither Rothwells nor the liquidators are parties to the present action. It remains the case, however, that the liquidation is not formerly concluded. In any event there is no basis on which I could be satisfied that there are not still interests, whether of Rothwells or its officers, or creditors, or of the liquidators themselves and their officers, to which documents of the liquidators relate, and which interests might be materially affected if the claim to privilege was not maintained. In this regard I note the tenor of the other preconditions which the liquidators put to the plaintiff. It is not the issue whether or not the liquidators or their officers are presently at risk in this litigation, or whether or not the parties to this action are the same as those involved in other litigation which gave rise to the privilege. Absent any statutory provision to the contrary, there being no loss of confidentiality, the privilege, having arisen, remains until waived by a person or entity competent and able to waive it: See generally Carter v The Managing Partner, Northmore Hale Davey and Leake (1995) 183 CLR 121, Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58. There was considerable dispute as to the form any orders might take. While the plaintiff propounded orders which, inter alia, would have purported to restrict the use of any documents discovered to the plaintiff and their advisers in the action, counsel for the State made the point that by virtue of the processes of discovery within this action the documents would become available to the other parties and their advisers.